News---Historic Guiding Without A License? A Free Speech Issue?

When in the course of human events, some tour guides are caught saying things like "Ben Franklin had 80 illegitimate children," the City Council shall force every tour guide in town to take a history test. Whereupon, some of the guides will pursue the blessings of free speech. In court.Case in point: Ann Boulais, tour guide and plaintiff. "Who can tell me why they decided to write the Constitution?" Ms. Boulais asked a trolley-load of tourists near Independence Hall one afternoon. "What's it there to protect us from?" When no one spoke, Ms. Boulais offered an answer of her own: "How about ourselves?"

The "ourselves" Ms. Boulais has had uppermost in her mind of late are her city's own elected leaders. A year ago, they made it illegal to talk about history for money in the city center without a license. Feeling tyrannized, Ms. Boulais and two fellow guides summoned the constitution's protections by suing the city in Philadelphia Federal court. The history test, they claimed, breached the Bill of Rights -- a set of rules, as any good guide should know, that took effect while Congress sat here at 6th and Chestnut streets, on Dec. 15, 1791.

A guide who wanted a license would have to know the answers to 65% of 150 questions about the city's historic sites. But the before testing could begin, the court granted the guides an injunction. That has left the test suspended for months in what scholars view as a fuzzy zone of judicial disputation over freedom of speech. The city, in its court filings, calls its law "an economic regulation" that has only an "incidental effect on speech." It notes that New York and Washington have similar rules. The guides point out that another crucible of revolution, Boston, has no such law, and note that speech is anything but "incidental" to a guided tour. "America," says Mike Tait, a tour guide and one of the plaintiffs, "was founded by people who stood up and said to the king of England, 'What you're doing isn't fair.' That's pretty much the same thing here." Except that the Philadelphia tour-guide rebellion's bête noire is Ron Avery, another tour guide.

Mr. Avery, a 67-year-old former newspaper reporter, writes books ("City of Brotherly Mayhem: Philadelphia Crimes and Criminals") and fills file drawers with Philly ephemera. A few years ago, he took a bunch of tours himself and came away convinced, he says, "that maybe 50% of the tour guides didn't know what the hell they were talking about." Of the flubs he overheard, Mr. Avery compiled a list of 91 beauts (including the one about Ben Franklin's progeny). A sampler of egregious Washingtoniana: George Washington is buried in Washington Square; he once lunched with Abraham Lincoln at Powel House; the equestrian statue near the Philadelphia Museum of Art is actually Frederick the Great with George's head.

A tour guide, Mr. Avery feels, cannot tell a lie. He showed his list to the City Council, and it unanimously agreed. History is so central to its "branding, messaging and identity," Philadelphia says in its court briefs, that its millions of visitors must be sheltered from "a great proliferation of misinformation." "The idea is a basic test -- no trick questions," says Mr. Avery. "It would force guides to study a little. What's the big deal?"

To Ms. Boulais -- who is 50, and named a pet guppy after Thomas Jefferson when she was 10 -- the big deal is the Constitution. She airs dirty laundry (slavery) and debunks myths (it's highly doubtful, in fact, that the Liberty Bell rang out when Independence was declared), but her tours aren't lectures -- they're shows. Ms. Boulais no more thinks she needs a license to tell a tall tale than a comedian needs one to tell a joke. Passing an Embassy Suites Hotel, she wasn't above letting her tourists in on a "rumor" that "the prince of Monaco proposed to Grace Kelly in there." Outside Betsy Ross House, she said: "I'm not going to dash the dreams of a second-grader that she sewed the American flag. I have to think she sewed it. That's my opinion." (Some historians aren't so sure.)

Listing Philadelphia's "firsts" (revolving doors, root beer) she cited Bassetts as "America's oldest ice-cream company," omitting that it was founded in New Jersey. At Congress Hall, she said the Senate is the "upper house" because "it met on the second floor," a notion the Senate Historical Office deems incorrect. Stuck in traffic on Market Street, Ms. Boulais did put one fallacy straight: "When was the Declaration of Independence signed?" she asked. A man in back yelled, "The third," and she took his cue to explain that it was "ratified" on the Fourth of July, 1776, and printed on the sixth, but that the signing didn't start until Aug. 2, and wasn't over until 1777. "That's a much better story," she said.

As her tour ended, Ms. Boulais briefly told her tourists about Philadelphia's license test and her view of it. Slipping her a tip on the way out, one of them hugged her and said, "Fight 'em!" That's how lawyers reacted at the Institute for Justice, a libertarian Washington law firm that up to now has mainly fought against licensing of hair braiders and casket salesmen. As Robert McNamara, a lawyer who took on the case, distills his argument, "Government can't make sure you understand the Constitution before it has to abide by it."

Tour guides, Mr. McNamara says in his briefs on their behalf, aren't like accountants, who say things people act upon. A license, he argues, would restrain the content of a guide's spiel because speech alone is at issue; leading a group "while entertaining them with show tunes" wouldn't require a test or a license. He proposed an optional test, but city officials (who declined to comment on the litigation) said no. If Philadelphia can license librarians, its briefs say, it can make sure guides are "capable of knowing something about what they are selling...." Once tested, it promises, guides can say whatever they please -- that Benjamin Franklin "should not have believed in natural rights, or anything else."

With the trial date due to be set on April 7, First Amendment experts can't call the outcome. "There's no apparatus for judges to figure out what they're doing in this area," says Prof. Robert Post of Yale Law School. On one point, though, there is no debate: Even if the city can't control what's said outside the nation's birthplace, the federal government can dictate what's said on the inside. Tours of Independence Hall, with its Windsor chairs and quill pens, are run by the National Park Service. A park ranger was in its Assembly Room not long ago, holding up a copy of the Declaration of Independence for a group of tourists. "The signing takes place in this room," he was saying, "on the second of August 1776."

His talk over, he stood at the door inviting questions. Wasn't the signing completed after Aug. 2? "Some people did come and sign later," said the ranger. And what did he think of the Philadelphia tour guides' lawsuit? "Ludicrous," he said. "People come here to get the truth." The ranger asked not to be quoted by name. Under park service rules, he wasn't authorized to speak.

Did the unlicensed guides make mistakes? A Tour Guide's List of Mistakes. See an interactive map of some of the flubs made in tours of Philadelphia.